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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Shanigan v. Shanigan (1/6/2017) sp-7144

Shanigan v. Shanigan (1/6/2017) sp-7144

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                   

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                     

          corrections@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



ELISSA  SHANIGAN,                                            )  

                                                             )          Supreme  Court  No.  S-15956  

                               Appellant,                    )  

                                                                                                                                

                                                             )          Superior Court No. 3AN-11-05578 CI  

                    v.	 	                                    )  

                                                             )                             

                                                                        O P I N I O N  

                      

TERRENCE SHANIGAN,                                           )  

                                                             )                                              

                                                                       No. 7144 - January 6, 2017  

                               Appellee.	 	                  )

 

                                                             )

 



                                                                                                         

                    Appeal from the Superior Court of the State of Alaska, Third  

                                                                                               

                    Judicial District, Anchorage, Patrick J. McKay, Judge.  



                                                                                             

                    Appearances:             Elissa      Przywojski,           pro     se,     Anchorage,  

                                                                                                  

                    Appellant.  No appearance by Appellee Terrence Shanigan.  



                                                                                                           

                    Before:  Stowers,  Chief  Justice,  Winfree,  Maassen,  and  

                                                 

                    Bolger, Justices.  



                                          

                    MAASSEN, Justice.  



                                           

I.        INTRODUCTION  



                                                                                                                                 

                    A mother appeals from an order reducing the amount of child support the  



                                                                                                                        

father was required to pay.  The mother argues that the superior court relied on incorrect  



                                                                                                                              

income calculations from the Child Support Services Division (CSSD) and that it erred  



                                                                                                                              

in finding a material change in circumstances sufficient to warrant a reduction in child  



                                                                                                                      

support.  She also argues that the court should have required the father to  submit an  



                                                                                                                                  

income affidavit, and that its failure to do so improperly shifted to her the burden of  


----------------------- Page 2-----------------------

 proving   the   father's   income.     We   conclude   that   CSSD's   income   calculations   were  



 incorrect, that it was error for the court to adopt them, and that the father should have                                                                                                                 



 been required to submit an income affidavit.                                                                                          We therefore reverse the superior court's                                                               



 order modifying child support.                                                                



 II.                 FACTS AND PROCEEDINGS                       



                                         Elissa Przywojski (formerly Shanigan) and Terrence Shanigan divorced in                                                                                                                                              



 January 2012, and Elissa was granted sole legal and primary physical custody of their                                                                                                   



 two minor children.                                           The 2012 child support order required Terrence to pay monthly                                                                                                              



 child support of $1,932.92.                      



                                         In June 2014 Terrence asked CSSD to review his support obligation.                                                                                                                                              He  



 gave CSSD copies of his 2013 federal tax return and the six most recent pay stubs from                                                                                                                                                              



 his   employment   with   the   State.     CSSD   recalculated   his   support   obligation   and  



 determined that it could be reduced by $315.92 a month.                                                                                                                    Because this was a reduction                             



 of 16.3%, Terrence was presumed to have had a material change in circumstances as                                                                                                                                                                           



 defined   by   Alaska   Civil   Rule   90.3(h),   which   would   justify   a   modification  of   his  

                                 1  Accordingly, in January 2015 CSSD asked the superior court to modify the  

 obligation.                                                                                                                                                                                                                                               



 existing child support order to reflect its new calculations.  

                                                                                                                                                                                 



                                         Elissa opposed the motion to modify, arguing that CSSD's calculations  

                                                                                                                                                                                                                               



 were wrong in several respects.  According to Elissa, a correct calculation would result  

                                                                                                                                                                                                                                                   



 in only a 10.7% decrease from the original child support order, too small a change to  

                                                                                                                                                                                                                                                             



justify a reduction in Terrence's support obligation.  Elissa also challenged Terrence's  

                                                                                                                                                                                                                                   



 failure to submit a sworn income affidavit in support of CSSD's request.  Finally, she  

                                                                                                                                                                                                                               



                     1                   Civil Rule 90.3(h)(1) provides that "[a] final child support award may be  

                                                                                                                                                                                                                                              

 modified upon a showing of a material change of circumstances[,] . . . [which] will be  

                                                                                                                                                                                                                      

 presumed if support as calculated under this rule is more than 15 percent greater or less  

                                                                                                                                                                                                                                                        

 than the outstanding support order."  

                                                                                                               



                                                                                                                              -2-                                                                                                                    7144
  


----------------------- Page 3-----------------------

 claimed that CSSD erred in assuming that Terrence had no income from a consulting                                                                                                                                                                                                                                                    



 business he had recently launched.                                                                                                                       



                                                           Along with her opposition Elissa filed an affidavit from her mother, a                                                                                                                                                                                                                                                 



 certified public accountant, who had done her own calculations based on the income                                                                                                                                                                                                                                                                     



 information Terrence had given CSSD. This competing analysis showed that Terrence's                                                                                                                                                                                                                                                       



 monthly support obligation should be reduced to $1,725.24 per month, a reduction of                                                                                                                                                                                                                                                                                           



 $207.68 instead of the $315.92 proposed by CSSD.  Because her figures showed only   



 a 10.7% reduction in Terrence's obligation, Elissa argued that a material change in                                                                                                                                                                                                                                                                                           



 circumstances could not be presumed under Rule 90.3(h) and no modification was                                                                                                                                                                                                                                                                                       



justified.  



                                                           The superior court granted CSSD's requested modification in February                                                                                                                                                                                                                 



 2015, decreasingTerrence'schildsupport obligation                                                                                                                                                                               to theCSSD-recommended amount                                                                                           



 of $1,617 per month.                                                                          The court issued no separate written findings, but it noted on its                                                                                                                                                                                                              



 order that it had reviewed Elissa's opposition and found "no supporting evidence" for   



 her claims.                                      Elissa filed successive motions for reconsideration, which the court denied.                                                                                                                                                                                                                                                             



                                                                                                                                                                                                                                                                                                 2  

                                                           Elissa filed this appeal.                                                                              Terrence did not participate.                                                                                                       



 III.                         STANDARD OF REVIEW  

                                                                                                               



                                                           "We use the clearly erroneous standard when reviewing factual findings,  

                                                                                                                                                                                                                                                                   

 including findings regarding a party's income . . . ."3                                                                                                                                                                                               "Factual findings 'are clearly  

                                                                                                                                                                                                                                                                                                                                                          



                              2                            Terrence did not file a brief, and we denied his later request to participate                                                                                                                                                                                                   



 in oral argument.                                                            See  Alaska R. App. P. 212(c)(10) ("When the appellee's brief is not                                                                                                                                                                                                                         

 filed as required, appellee will not be heard at oral argument except on consent of the                                                                                                                                                                                                                                                                                   

 appellant, or by request of the court.").                                                                                                                                  



                              3                             Wilhour v. Wilhour, 308 P.3d 884, 887 (Alaska 2013).  

                                                                                                                                                                                                                                                                           



                                                                                                                                                                                       -3-                                                                                                                                                                          7144
  


----------------------- Page 4-----------------------

  erroneous when, "after reviewing the record as a whole, [we are] left with a definite and                                                                 



                                                                                               4  

  firm conviction that a mistake has been made." ' "                                              



  IV.	 	  DISCUSSION  



                                                                                                                                             

              A.	 	       It Was Error To Grant The Requested Modification Of Terrence's  

                                                                                                                                                 

                          Child Support Obligation Because He Failed To Show A Material  

                                                         

                          Change In His Income.  



                                                                                                                                

                           1.	 	       Child support is calculated under Rule 90.3.  



                                                                                                                                                                

                          Rule 90.3 prescribes how child support is calculated.  The starting point is  



                                                                                                            5  

                                                                                                                                                      

  the non-custodial parent's "total income fromall sources."                                                   Subtracted from this income  



                                                                                                                                    

  figure are five "mandatory deductions" set out in Rule 90.3(a)(1)(A):  



                                                                                                  

                          (i)	 	       federal, state, and local income tax,  



                                                                                                                                      

                          (ii)	 	      Social Security tax or the equivalent contribution to an  

                                                                                                                                   

                                       alternate plan established by a public employer, and  

                                                                        

                                       self-employment tax,  



                                                          

                          (iii)	 	 Medicare tax,  



                                                                                   

                          (iv)	 	  mandatory union dues, [and]  



                                                                                                

                          (v)	 	       mandatory contributions to  a retirement  or pension  

                                       plan.  



                                                                                                                                                

Rule 90.3(a)(1)(B) also allows a deduction for "voluntary contributions to a retirement  



                                                                                                                                                

or  pension  plan  or  account  .  .  .  except  that  the  total  amount  of  these  voluntary  



                                                                                                                                                    

contributions plus any mandatory contributions . . . may not exceed 7.5% of the parent's  



                                                                                                                                                    

gross wages." After the court has made these deductions (and several others not relevant  



                                                                                                                                                

here), what remains is the non-custodial parent's "adjusted annual income."  



              4           Sharpe v. Sharpe                  , 366 P.3d 66, 68-69 (Alaska 2016) (modification in                                                



  original) (quoting                Bennett v. Bennett                , 6 P.3d 724, 726 (Alaska 2000)).                



              5           Alaska R. Civ. P. 90.3(a)(1).  

                                                                                  



                                                                               -4-	                                                                      7144
  


----------------------- Page 5-----------------------

                          Once this amount has been determined, Rule 90.3(a)(2) gives the formula  



for calculating the child support obligation of the non-custodial parent. Because Terrence  

                                                                                                                                                       



and Elissa have two minor children, the amount of the obligation is the adjusted annual  

                                                                                                                                                           



                                                 6  

income multiplied by .27.   

                                           



                          To trigger a modification in child support under Rule 90.3(h)(1), the party  

                                                                                                                                                              



petitioning for modification must demonstrate that there has been "a material change of  

                                                                                                                                                                    



circumstances," which is presumed "if support as calculated under [the] rule is more than  

                                                                                                                                                                



 15 percent greater or less than the outstanding support order."  

                                                                                                                         



                          2.          Terrence's gross income for 2014 was $108,729.72.  

                                                                                                                     



                           Because Terrence submitted his request for modification before the end of  

                                                                                                                                                                    



2014, CSSD extrapolated his gross annual income through the end of the year using his  

                                                                                                                                                                  



most recent income information.   As of his latest pay stub, dated October 28, 2014,  

                                                                                                                                                            



Terrence's "total gross" income from his State employment was $88,295.60.   Elissa  

                                                                                                                                                           

correctly  extrapolates  that  amount  to  an  annual  income  of  $105,954.72.7                                                                       In  2014  

                                                                                                                                                             



Terrence also received a $1,884 Permanent Fund Dividend (PFD) and $891 in native  

                                                                                                                                                            



corporation dividends.  These three amounts added together equal $108,729.72 in gross  

                                                                                                                                                              



income.  As Elissa notes, CSSD's calculation of Terrence's gross income, $109,269.72,  

                                                                                                                                               



was $540 too high because it again added Terrence's non-taxable cell phone allowance,  

                                                                                                                                                   

already included as income on his pay stub.8  

                                                                           



              6            Alaska R. Civ. P. 90.3(a)(2)(B).                                



              7            $88,295.60 (total gross as of October 2014) divided by 20 (total number of                                                               



                                                                                                                                                            

  pay periods to date) then multiplied by 24 (total number of pay periods in 2014) equals  

  $105,954.72.  



              8            See ALASKA  DEP 'T OF                      ADMIN.,  How to Read Your Payroll Stub and Yearly                                     

                                    

  W2 Earnings Statement                          1 http://doa.alaska.gov/dof/payroll/resource/prstubref.pdf (last                                               

                                                                                                                                              (continued...)  



                                                                                  -5-                                                                         7144
  


----------------------- Page 6-----------------------

                                                           3.	 	                         CSSD   incorrectly   calculated   Terrence's   Rule   90.3   adjusted  

                                                                                          annual income by overstating his federal income and Medicare   

                                                                                         tax obligations.                                                           



                                                            The following mandatory deductions should have been subtracted from                                                                                                                                                                                                                                               



Terrence's                                                 gross                             income                                     to                 determine                                              his                    adjusted                                        annual                                  income                                     under  



Rule    90.3(a)(1)(A):       federal    income    tax,    mandatory    contributions    to    Alaska's  



 Supplemental    Benefits    System    (SBS)    Annuity    Plan    (the    State's    Social    Security  



equivalent),   Medicare   tax,   mandatory   union   dues,   and   mandatory   contributions   to  



Terrence's retirement plan.                                                                                                While CSSD did take those deductions into account, Elissa                                                                                                                                                                                      



argues that it erred in calculating two of them - federal income tax and Medicare tax -                                                                                                                                                                                                                                                                                                  



resulting in an incorrect figure for Terrence's annual adjusted income.                                                                                                                                                                                                                                                    We agree.   



                                                                                             a.	 	                         Federal income tax                                                         



                                                               Based on the documentation Terrence provided, CSSD determined that his                                                                                                                                                                                                                                                   



    2014 income tax obligation was $1,731.51 per month, or $20,778.12 per year.                                                                                                                                                                                                                                                                                        Elissa  



    argues that this calculation overstated Terrence's tax obligation because it was based on                                                                                                                                                                                                                                                                                             



    his gross, rather than taxable, income.                                                                                                                                           The child support guidelines worksheet that                                                                                                                                                  



    CSSD   submitted   to   the   court   listed   Terrence's   "total   taxable   gross   income"   as  



    $108,729.72. According to the worksheet, this number was derived, as discussed above,                                                                                                                                                                                                                                                                               



    by extrapolating Terrence's State income to an annual figure and adding his PFD and                                                                                                                                                                                                                                                                                             



    native corporation dividend income.                                                                                                                                        But as Elissa argues, Terrence's total taxable                                                                                                                                      



    income was significantly lower, because not all of his gross income from his State                                                                                                                                                                                                                                                                     



    employment was subject to federal taxation.                                                                                                                                                            



                                  8(...continued)  



                                                                                                                                                                                                                                                                                                                                                                                           

    updated Dec. 14, 2015) (explaining that "non-taxed" income, including "such things as  

                                                                                                                                                                                                                                                                                                                                                                          

     . . . non-taxable cell phone allowances," are "included in Total Gross amount").  



                                                                                                                                                                                               -6-	                                                                                                                                                                             7144
  


----------------------- Page 7-----------------------

                            The United States tax code allows certain deductions from gross income                                                                    



                                                                                   9  

before federal income tax is calculated.                                                                                                                                     

                                                                                        As an Alaska State employee, Terrence was  



                                                                                                                                                                       

allowed  deductions  for  the  following:                                                "non-taxed"  items  including  a  cell  phone  



                                                                                                                                                                 

allowance ($540); employee-paid premiums, including voluntary SBS and employee  



                                                                                                                                                               

health insurance premiums ($4,684.32); deferred compensation ($1,080); mandatory  



                                                                                                                                                                          

SBS, which is excluded from federal taxation until the employee withdraws it upon  



                                                                                                                                                        

termination  of  employment  ($6,461.94);  and  mandatory  retirement  contributions  

                          10  Taking those deductions into account, Terrence's total taxable income for  

($7,291.81).                                                                                                                                                                    



2014,  extrapolated  annually  and  then  adding  the  PFD  and  other  dividends,  was  

                                                                                                                                                                            



$88,671.65, not $108,729.72 as calculated by CSSD.  This result comports with the  

                                                                                                                                                                               



"taxablecompensation"shownonTerrence'sOctober 2014 paycheckwhenextrapolated  

                                                                                                                                                            



                    11  

annually.                 



                            The next step in the analysis is to determine the actual tax obligation.  In  

                                                                                                                          



order to do so, CSSD assumes a standard deduction for a single person.  In 2014 that  

                                                                                                                                                                             



              9             26 U.S.C.  211 (2012).                             



              10            See ALASKA  DEP 'T OF                          ADMIN.,  supra  note 8, at 1-2 (detailing income and                                               

                                     

contributions not subject to taxation). The amount of each of these deductions is derived                                                                             

by the same formula used to determine Terrence's 2014 gross income:                                                                                   the amount on  

his October 2014 paycheck divided by 20, then multiplied by 24.                                                                           



              11            Terrence's taxable compensation was listed on his October pay stub as  

                                                                                                                                                                                 

$71,580.54.  Extrapolating that amount over the entire year and adding the PFD and  

                                                                                                                                                                              

other dividends yields $88,671.65. Terrence's W2 and other income documentation are  

                                                                                                                                                                               

also consistent with this result.  In 2013 his total gross income as of his last paycheck  

                                                                                                                                                         

was $107,123.76, while his taxable compensation was listed as $87,876.31.  According  

                                                                                                                                                               

to his W2, his wages for the year were the latter number, which was used as the starting  

                                                                                                                                                                      

point for calculating his federal income tax.  His gross income does not factor into that  

                                                                                                                                                                              

calculation.  

                          



                                                                                        -7-                                                                                7144
  


----------------------- Page 8-----------------------

                                                                                                                                                                                  12  

standard deduction was $6,200, and the applicable personal exemption was $3,950.                                                                                                       



                                                                                                                                                              

After application of the standard deduction and the personal exemption, Terrence's  



                                                                                                                                                                                 

taxable income was $78,521.65.  The federal income tax calculated on that amount in  



                                        13  

                                             

                      

2014 was $15,488. 



                            CSSD did not explain to the superior court how it derived Terrence's  

                                                                                                                                                              



federal income tax obligation, but whatever method it used, it arrived at a tax obligation  

                                                                                                                                                                



of $20,778.12, approximately $5,290 higher than it should have been.  In fact, CSSD's  

                                                                                                                                                                     



federal income tax determination is almost precisely what it would have been had CSSD  

                                                                                                                                                                         



neglected to deduct Terrence's pre-tax income, as Elissa claims occurred.  Subtracting  

                                                                                                                                                             



the standard deduction and personal exemption from CSSD's total taxable income figure  

                                                                                                                                                                          



of $108,729.72 leaves $98,579.72 in taxable income. In 2014, the tax obligation for that  

                                                                                                                                                                              

                                            14  - almost exactly the amount CSSD calculated.  We can only  

income was $20,777                                                                                                                                                          

                           



conclude that CSSD failed to deduct those portions of Terrence's income that are not  

                                                                                                                                                                               

                                                                                                                                    15    This led it to deduct  

subject to taxation before it calculated his federal income tax.                                                                                                       

                                                                                                                            



              12            INTERNAL   REVENUE   SERV.,  Form 1040                                               , U.S. I       NDIVIDUAL   INCOME   TAX  



RETURN at 2 (2014), https://www.irs.gov/pub/irs-prior/f1040--2014.pdf.                                                                                   

                            



              13            INTERNAL                  REVENUE                  SERV.,            1040            TAX          TABLES               at       85        (2014),  



https://www.irs.gov/pub/irs-prior/i1040tt--2014.pdf. ElissacalculatedTerrence'sincome                                                                                  

tax obligation at $15,398, apparently assuming that he would have selected a slightly                                                                                

lower   alternative capital gains tax                                       in  lieu  of the regular                        scheduled   tax   of $15,488.                              

Because this minor discrepancy does not affect the analysis, we do not consider which                                                                                    

amount more accurately reflected Terrence's actual obligation.                                                                       



              14            Id. at 87.  

                                         



              15            CSSDdoes not dispute that itisrequired to deduct the non-taxableelements  

                                                                                                                                                                   

of Terrence's income before calculating his income tax; it simply failed to do so.  In an  

                                                                                                                                                                                 

affidavit  CSSD submitted to  the superior  court it stated  that "SBS and Retirement  

                                                                                                                                                             

deductions are pre-tax deductions for the purpose of calculating an individual income tax  

                                                                                                                                                                                

                                                                                                                                                         (continued...)  



                                                                                        -8-                                                                                7144
  


----------------------- Page 9-----------------------

$5,290 too much from Terrence's total income, resulting in an artificially low annual                                                                                  



adjusted income for the purpose of calculating child support.                                                                    



                                          b.            Medicare tax   



                            Elissa also addresses Terrence's Medicare tax obligation, arguing that he         



                                                                                                                                                                       16  

would have owed only $1,460.57 rather than $1,536.36 as calculated by CSSD.                                                                                                 The  



                                                                                                                                                                              

minor difference between these two numbers would not alone affect the outcome of this  



            

case, but Elissa is correct.  The Medicare tax rate for employees is 1.45% of Medicare  



                                                                                                                                                                 

wages (gross wages minus non-taxed items, voluntary SBS contributions, and employee  



                                                           17  

                                                                                                                                                                                

health insurance premiums).                                     CSSD's number, $1,536.36, is 1.45% of $105,954.72 -  



                                                                                                                                                                         

Terrence's gross income from his State employment.                                                                      It appears  that  CSSD based  



                                                                                                                                                                               

Terrence's Medicare tax obligation on his gross income without deducting income not  



                                        

subject to the tax.  



                                                                                                                                                                              

                            HadCSSDcalculated Terrence'sMedicaretaxcorrectly, it would havefirst  



                                                                                                                                                                             

deducted from his pay the non-taxed amounts (the $540 cell phone allowance) and pre- 



                                                                                                                                                           

tax  deductions  such  as  voluntary  SBS  and  employee  health  insurance  ($4,684.32),  

                                                                                                                              18    1.45% of that amount is  

                                                                                                                                                                                  

yielding $100,730.40 in income subject to the Medicare tax. 



$1,460.59, almost exactly what Elissa suggests - and this is the amount the State  

                                                                                                                                                                          



              15(...continued)  



obligation   and   determining  the   adjusted   annual   income   from  which   income   for   child  

support  purposes  is  calculated."  



              16            Terrence's  yearly  obligation  would  have  been  $1,536.36  based  on  CSSD's  



monthly  Medicare  tax  calculation  of  $128.03.   



              17            26 U.S.C.  3101(b)(1) (2012);  3121(a), (b).  

                                                                                                                      



              18            ALASKA  DEP 'T OF  ADMIN.,  supra  note  8.   



                                                                                        -9-                                                                                7144
  


----------------------- Page 10-----------------------

                                              19  

 actually    withheld.                                  CSSD    overstated    Terrence's    Medicare    tax    obligation    by  



 approximately $75 per year and as a result, again, deducted too much money from his   



 gross income when calculating his annual adjusted income for child support purposes.                                                                                                                            



                                4.	 	           Reliance on CSSD's erroneous income calculations                                                                                                  

                                                resulted in an unwarranted modification of child support.                                                                     



                                Relying on its incorrect calculations of federal income and Medicare taxes,                                                                                       



                                                                                                                                                                                       20  

 CSSD determined                               that Terrence's 2014                                 adjusted   income was $71,868.24.                                                          CSSD  



                                                                                                                                                                                                      

 applied to this figure the appropriate multiplier of .27 under Rule 90.3, concluding that  



                                                                                                                                                                                     

 Terrence's monthly child support obligation was $1,617.  The change from Terrence's  



                                                                                                                                                                                                     

 original child support obligation of $1,932.92 was 16.3%.  Because that change was  



                                                                                                                                                                             

 greater than 15%, CSSD presumed there had been a material change in circumstances  



                                                                            

justifying a modification to his obligation.  



                                                                                                                                                                                                    

                                But Terrence's adjusted annual incomefor Rule90.3 purposes should have  



                                          21  

                                                                                                                                                                                                

been $76,694.15,                                assuming the accuracy of CSSD's other deductions (which Elissa  



                 19             Elissa appears to have derived this number through an annual extrapolation                                                                      



 of Terrence's Medicare withholdings as of his October 2014 paycheck.                                                                                                              Terrence's  

 mandatory Medicare tax withholding as of that time was $1,217.14, which extrapolated                                                                                             

 annually yields an obligation of $1,460.57.                                  



                20              CSSD derived this number by deducting the following from Terrence's  

                                                                                                                                                                                     

 gross income ($109,269.72, according to CSSD): mandatory SBS ($6,495); Medicare  

                                                                                                                                                                

 tax ($1,536.36);uniondues($1,440); mandatory retirement ($7,152); andfederal income  

                                                                                                                                                                                              

 tax ($20,778.12).  

                                            



                21              Gross income of $108,729.72 (corrected so as not to double-count the  

                                                                                                                                                                                                       

phone allowance) is reduced by union dues ($1,440), CSSD's calculations of mandatory  

                                                                                                                                                                                      

 SBS ($6,495) and retirement ($7,152), along with the corrected deductions for federal  

                                                                                                              

 income tax ($15,488) and Medicare tax ($1,460.57).  

                                                                                                 



                                                                                                   -10-	                                                                                           7144
  


----------------------- Page 11-----------------------

does not challenge).22  Based on that adjusted annual income, the annual child support                                                                              



obligation for two children is $20,707.42, with a monthly obligation of $1,725.62 -                                                                                                                                          



again,   almost   exactly   the   amount   Elissa   proposes.    The   change   from   the   existing  



obligation is only 10.7%, insufficient to presume that a modification of child support is                                                                                                                                      



warranted under Rule 90.3(h).                                                     



                                   In granting the requested modification, the superior court appears to have                                                                                                          



relied solely on CSSD's calculations.                                                                   We have held in the past that "CSSD has no                                                                          



decision-making role to play [in child support determinations], and the court has no                                                                                                                                        

                                                                                                                             23   In Monette v. Hoff we considered the  

obligation to accept CSSD's initial calculation."                                                                                                                                                                           



superior court's adoption of a child support calculation and subsequent administrative  

                                                                                               

decision of CSSD (then referred to as CSED).24                                                                                     A non-custodial parent claimed that  

                                                                                                                                                                                                                         



CSED  had  erroneously  calculated  her  child  support  obligation  by  overstating  her  

                                                                                                                                                                                                                          

income.25                    The parent provided the court with her tax return to demonstrate that her  

                                                                                                                                                                                                                          



income was far less than what CSED attributed to her, but the superior court nevertheless  

                                                                                                                                                                                                   

                                                                                                                                           26      We observed that the superior  

denied her motion to modify the child support order.                                                                                                                                                          

                                                                                                                            



court did not show how it had determined child support and that "[t]he superior court  

                                                                                                                                                                                                                      



may have applied a deferential standard of review of CSED's prior calculation of child  

                                                                                                                                                                                                                      



                  22  

                                   CSSD's  calculations   of   Terrence's   mandatory   SBS   and   retirement are  

slightly different than Elissa's. But because the differences are minor and because Elissa                                                                                                                          

does not challenge them on this appeal, we do not consider them further.                                                                                                    



                  23               Reilly v. Northrop, 314 P.3d 1206, 1213 (Alaska 2013) (citing Alaska R.  

                                                                                                                                               

Civ. P. 90.3; McDonald v. Trihub, 173 P.3d 416, 422-23 (Alaska 2007)).  

                                                                                                                                                                                                  



                  24               958 P.2d 434, 437 (Alaska 1998).  

                                                                                                                              



                  25               Id.  

                                            



                  26               Id.  

                                            



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                                                                                                                                  27  

support and adopted the support amount as calculated by CSED."                                                                         We noted that such            



an approach "would have been error, because the superior court could not simply adopt                                                                              



                                                                                                                           28  

or deferentially review an administrative decision by CSED."                                                                    



                                                                                                                                                                     

                           Here Elissa provided the court with extensive documentation and her own  



                                                                                                                                                                         

calculations, supported by the affidavit of her accountant witness, in an attempt to  



                                                                                                                                               

demonstrate that CSSD erred. As "the party attacking the child support determination,"  



she "bore the burden of proving, by the preponderance of the evidence, that [CSSD's]  

                                                                          29   We conclude that she met that burden.  

                                                                                                                                             

income calculations were incorrect." 



             B.	 	         It Was Error To Grant The Requested Child Support Modification In  

                                                                                                                                                                         

                           The Absence Of A Child Support Guidelines Affidavit From Terrence  

                                                                                                                                                           

                           As Required By Rule 90.3.  

                                                                          



                           Elissa makes two additional arguments.  First, she argues that CSSD, and  

                                                                                                                                                                      



therefore the superior court, erred not only in its calculation of Terrence's child support  

                                                                                                                                                               



obligation but also by performing that calculation without theincomedocumentation that  

                                                                                                                                                                       



Rule 90.3 requires. Second, she argues that it was error for the superior court to shift the  

                                                                                                                                                                        



burden  to  her  to  demonstrate  that  Terrence  did  not  receive  income  from  his  new  

                                                                                                                                                                    



consulting business in 2014 rather than requiring him to submit an affidavit stating  

                                                                                                                                                                



whether he did.  

                                 



                           We agree that Terrence should have been required to submit an income  

                                                                                                                                                               



affidavit. In its Notice of Petition for Modification, CSSD requested income information  

                                                                                                                                                      



from both Elissa and Terrence, including notarized income affidavits, W-2s and tax  

                                                                                                                                                              



returns, and recent pay stubs.  Terrence apparently submitted only his recent pay stubs  

                                                                                                                                                                   



             27           Id.   



             28           Id.   



             29            Nunley v.  State,  Dep't  of Revenue, Child Support Enf't Div., 99  P.3d 7, 9  



(Alaska  2004).   



                                                                                   -12-	                                                                           7144
  


----------------------- Page 13-----------------------

and an unsigned, self-prepared 2013 tax return.                                                                                 Elissa argues that because Terrence                                  



failed to submit requested documentation, "especially the sworn income affidavits,"                                                                                                            



CSSD   should   not   have   considered   his   request   for   modification.     She   cites   to  



Rule 90.3(e)(1), which requires that "each parent in a court proceeding at which child                                                                                                                          



support is involved must file a statement under oath which states the parent's adjusted                                                                 



annual income . . . .                          This statement must be filed with a party's . . . motion to modify."                                                                                                            



The commentary to Rule 90.3 also states that "each parent . . . must provide the court                                                                                                                         



                                                                                                                                                                                                                        30  

with an incomestatementunder oath"and "documentation of current and past income."                                                                                                                                              



                                  Our case law supports Elissa's argument that submission of an income  

                                                                                                                                                                                                         



affidavit was mandatory. In Harris v. Westfall an appellant argued that the trial court had  

                                                                                                                                                                                                                    



erred by failing to require her former husband to file a child support guidelines affidavit,  

                                                                                                                                                                                                      



and we agreed that "the [trial] court had to know [his] earning capacity and should have  

                                                                                                                                                                                                                 

required him to submit a child support guidelines affidavit."31                                                                                                   We also noted that the  

                                                                                                                                                                                                                    



calculation of child support on remand would "require [both parents] to file current child  

                                                                                                                                                                                                                



                                                                             32  

support guidelines affidavits."                                                    

                                                 



                                  An affidavit was particularly critical in this case because of Terrence's  

                                                                                                                                                                                                 



nascent consulting business, begun in 2013.  Whether it generated any income in 2014  

                                                                                                                                                                                                                



is  an  unresolved  question  of  fact,  though  presumably  Terrence  has  access  to  that  

                                                                                                                                                                                                                  



information.  As Elissa argues, the failure to require Terrence to file an income affidavit  

                                                                                                                                                                                                       



improperly shifted the burden to her to show what income he may have received from  

                                                                              



the consulting business or other sources not reflected in his pay stubs.  It was error to  

                                                                                                                                                                                                                       



grant a modification in Terrence's favor in the absence of his supporting affidavit.  

                                                                                                                                                                                           



                 30               Alaska  R.  Civ.  P.  cmt.  VIII(A).   



                 31               90  P.3d   167,   175  (Alaska  2004).  



                 32               Id.   



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V.                               CONCLUSION  



                                                                 The order modifying the 2012 child support obligation is REVERSED.                                                                                                                                                                                                                                                                                               

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